CBS loses lawsuit; ABC's "I'm A Celebrity, Get Me Out of Here!" to air in February

By Wade Paulsen, 01/14/2003

The Associated Press and Reuters both report that a federal judge in the Southern District of New York refused to grant an injunction to CBS and Survivor to block the airing of a clone of the show, entitled I'm A Celebrity ... Get Me Out of Here!, scheduled to run on ABC during the February sweeps. As a result, ABC/Disney should be able to air the 15-episode British import next month, as scheduled.

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U.S. District Judge Loretta Preska, who read from her opinion for over two hours in court, held that the shows, which both deal with survival skills in a hostile environment, feature similar and even identical challenges, and vote contestants off one at a time until a winner is determined, were not substantially similar. In her words, television programming is "a continual evolutionary process involving borrowing frequently from what has gone before" (is that why Newton Minow called TV a "vast wasteland"?) and Celebrity is different enough from Survivor that CBS would have difficulty prevailing in its underlying copyright infringement suit.

In addition, Judge Preska believed that ABC would be harmed more by the injunction than CBS would by the airing of Celebrity. She stated that ABC would suffer substantial harm if a show that it was depending upon for its February sweeps period were yanked off the air at this time: "Prohibiting Celebrity from airing would bring to a screeching halt the progress ABC has made in regaining its ratings." Apparently she, like ABC, believes that Celebrity will repeat its U.K. success here.

As it is unlikely that an appellate court will grant an injunction on this fact pattern, Judge Preska's ruling all but guarantees that Celebrity will air next month. ABC, which has yet to announce any details about the show, was ecstatic; an ABC spokesman was quoted as saying that the network looked forward "to giving the American public a chance to see this fresh new reality show that has played to enormous audiences in the United Kingdom." CBS, meanwhile, unsurpringly announced that it was studying its options.

Further details about Celebrity, including its host, cast, location, and air schedule, will be published on RealityTVWorld when revealed by ABC and Granada Television, the cloner of Celebrity..

As previously discussed here, here, and here, Celebrity was a huge hit in the U.K., despite the fact that Survivor U.K. failed to make a dent in the ratings twice. However, the show's similarity in content to Survivor led most observers in the U.K. and the U.S. to believe that the shows had some licensing agreement, which (as these lawsuits made clear) was not the case.

From a legal standpoint, Judge Presca's ruling seems, to put it politely, problematic. For example, the ruling states that the show's "content and feel" were different. As an example of the feel being different, the worm-eating challenges on both shows are cited. On Survivor, the worm-eating challenge was played seriously, and one of the contestants was shown throwing up. On Celebrity, the worm was served on fine china and fine linen, and one of the contestants (Uri Geller, the psychic) was seen making jokes as he ate the worm. However, the content of these two sequences is identical -- contestants are required to eat worms at a challenge.

Judge Preska correctly points out that an idea cannot be protected; only the expression of that idea is covered by the copyright. Eatring worms or other disgusting food at a challenge, though, would seem to be an expression of an idea and thus would seem to be protectable -- and such challenges are a key part of the content of both shows.

While ruling that the expression of the two shows was different, Judge Preska noted that to rule otherwise would "stifle innovation and stifle the creative process." However, the entire point of intellectual property law is to do just that -- prevent other people from using your property for further innovation, no matter how creative -- during the period of exclusive use granted to you by the intellectual property rights without your permission. Thus, this comment seems glaringly wrongheaded in an opinion discussing what is likely to be a landmark case in copyright law.

According to the published reports (the opinion is not yet available from the SDNY Web site), Judge Preska ruled in favor of Celebrity on two grounds: first, that it was a lighthearted show, while Survivor was serious, and second, that the use of videotape in Celebrity conveys a different image than the use of film in Survivor.

On the other hand, one of the landmark cases of copyright law, Whelan Assoc. v. Jaslow Dental Lab, Inc. (3d Cir. 1986), ruled that the test for copyright infringement should be based on the "structure, sequence and organization" of the potentially infringing work, even in the absence of direct copying. Comparing the two shows illustrates that the shows are both structured with a group of people performing survival-related stunts to remain in a wild place; the shows proceed episodically, with one person at a time voted off; and ultimately a winner is chosen. It's hard to see how the different look of film and videotape can be viewed as significant enough to offset the structural, sequencing and organizational similarities.

In Celebrity, unlike Survivor, the vote is done by viewers, not contestants -- but if that by itself makes the shows different, then Big Brother 2 (which used contestant voting for ousters and a head-of-household competition for nominations) was so different from Big Brother 1 (which used audience voting for ousters and contestant voting for nominations) that it wouldn't have been covered by BB1's copyright -- which seems like an absurd result.

Judge Preska also cited other episodes of "copying" in TV's history, including Bewitched and I Dream of Jeannie, to argue that copying was acceptable. However, I Dream of Jeannie, while similar to Bewitrched in some ways, was basically a gender-reversed version of the story of Aladdin's Lamp, which is quite definitely in the public domain. By contrast, Celebrity is a copy of Survivor, which is not in the public domain ... yet.

It remains to be seen whether an appellate court will be as impressed by the difference between comedy and videotape versus drama and film as Judge Preska was. After all, even if there are humorous moments, Celebrity is NOT a parody -- it's an intense competition in its own right, as witnessed by the snarky comments made by the D-list celebrities during and after the U.K. show.

In the meantime, RealityTVWorld.com is happy to have another high-profile show to follow, and we will keep you up to date on all of the happenings with Celebrity as it zooms toward its U.S. debut.

And ... perhaps ABC and Disney will honor Judge Preska's ruling, and her disdain for intellectual property, by dropping their efforts to once again lengthen the period of copyright protection for Mickey Mouse?

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